Public Interest Disclosure Scheme

ARTF – Public Interest Disclosure Act 2013

Statement of Intent – The Chair and Board of the ARTF Company commit to the highest standard of ethical and accountable conduct and support for staff / persons who make a public interest disclosure.

Procedures – Authorised Officer

Receiving and allocating disclosures under the Public Interest Disclosure Act 2013

References in brackets in this document relate to the PID Act or to the PID Standards. Where the word ‘must’ is used in this document, it relates to mandatory obligations imposed by the PID Act, PID Standards or DI(G) PERS 45-8: Defence Public Interest Disclosure Scheme.

These procedures should be read in conjunction with the Defence Public Interest Disclosure Scheme – Administrative Guide at www.pid.ombudsman.gov.au.

Information has been disclosed to you…

Yes/No

Are you a principal officer (or delegate*) [s 36(a)]?

OR

Are you an authorised officer, appointed in writing by the principal officer (or delegate*) for the ARTF [s 36(b)]?

*The Fund Secretary is the delegated authorised officer

Has information been disclosed to you by a current or former public official [s 43(a)]?

Note 1: A person must be a current or former ‘public official’, as defined in s 69 of the PID Act, to make a public interest disclosure. This is a broad term which includes a:

Commonwealth public servant;

member of the Australian Defence Force,

appointee of the Australian Federal Police,

Parliamentary Service employee,

director or staff member of a Commonwealth company,

statutory office holder or other person who exercises powers under a Commonwealth law.

Individuals and organisations that provide goods or services under a Commonwealth contract (defined in s 30(3)) and their officers or employees are also included. This includes subcontractors who are responsible for providing goods or services for the purposes of the Commonwealth contract [s 30(2)].

Note 2: The PID Act requires that the public official can only make a public interest disclosure to an authorised internal recipient (i.e. an authorised officer) in the agency to which they currently belong, or to which they last belonged (s 34). In all other circumstances, public officials from other agencies attempting to report a public interest disclosure relating to the ARTF should be referred to authorised officers in that public official’s own agency, or to the agency to which they last belonged.

OR

Has information been reported to you by a public official in Defence, as a result of receiving a disclosure from another public official in Defence whom they currently supervise, manage or command [s 43(b)]?

OR

Has an authorised officer from another agency contacted you with regards to allocating the handling of a disclosure to the ARTF (s 43)?

OR

Has the information been received from an individual deemed to be a ‘public official’ (s 70)?

Does the information tend to show*, or does the discloser believe on reasonable grounds** that the information tends to show, one or more instances of disclosable conduct [s 26 (1) and 43(2)]?

Note 3: Disclosable conduct (defined in s 29) includes conduct by the ARTF, or ARTF (Defence personnel) in connection with their position; or a contracted Commonwealth service provider in connection with entering into or giving effect to a Defence contract, that:

contravenes a Commonwealth, State or Territory law

in a foreign country, contravenes a foreign law that applies to the agency, official or service provider

perverts the course of justice

is corrupt

constitutes maladministration, including conduct that is based on improper motives or is unreasonable, unjust, oppressive or negligent

is an abuse of public trust

involves fabrication, falsification, plagiarism or deception relating to scientific research, or other misconduct in relation to scientific research, analysis or advice

results in wastage of public money or public property

unreasonably endangers health and safety

endangers the environment

conduct by a public official that involves or is engaged in for the purposes of abusing their position as a public official

conduct that could give reasonable grounds for disciplinary action against the public official [s 29(2)].

It does not matter if the conduct occurred before or after 15 January 2014, or if the public official or contracted service provider alleged to have committed the wrongdoing has since ceased to be a public official or contracted service provider, as the case may be [ 29(3)].

*‘Tends to show’

A mere allegation with no supporting information is not sufficient to tend to show that wrongdoing has occurred or may be occurring: there must be sufficient information to support the allegation. If there is not, the discloser should be asked for additional information.

However, it is important to remember that a discloser does not need to prove their allegations – they only need to provide sufficient information to put the agency on notice that disclosable conduct may have occurred or be occurring.
Agencies should be careful not to encourage staff to investigate a matter themselves before making a disclosure; as such actions may prejudice a future investigation.

**‘Belief on reasonable grounds’

A belief is more than a suspicion or assertion: the person reporting the wrongdoing must be more likely to accept that wrongdoing occurred than reject that idea.
Belief ‘on reasonable grounds’ means that a reasonable person would believe in the circumstances that the wrongdoing had occurred. Personal prejudice or animosity towards someone is not sufficient. Some ‘tangible support’ for the belief would be necessary. This could be based on direct observation of wrongdoing, evidence such as documentary records or missing items of value, or corroboration by other people. It need not be evidence which would be admissible in a court of law (for example, hearsay could be considered).

MANDATORY ALLOCATION ACTION REQUIRED

Where you are satisfied that a disclosure meets the three criteria set out above, the threshold test for a ‘public interest disclosure [s 26(1)]’ has been met.Note 4: In limited circumstances, information can also be disclosed by a public official to someone ‘outside’ of government. This is known as an ‘external disclosure’, an ‘emergency disclosure’ or a ‘legal practitioner disclosure’. These types of disclosures will be very rare. Authorised officers (other than principal officers) will not be required to deal with these types of disclosures and, for this reason; these types of disclosures will not be covered in this checklist.

It is envisaged that in the majority cases, information disclosed to the authorised officer ARTF, will be allocated to the ARTF for handling.

Where you believe the information disclosed, is of a nature that is outside of your experience and you are unable to make a determinate as to whether it is disclosable conduct, you may choose to seek guidance from IGD (via the PID Hotline, PID email account or via the online ‘Report and Incident Form’ located on PID website

ARTF personnel wishing to allocate a disclosure to an agency (other than ARTF.), must not do so, unless an authorised officer of that agency has consented to that allocation [s 43(6)].

Exception to mandatory obligation to allocate to an agency:

If satisfied, on reasonable grounds, that there is no reasonable basis on which the disclosure could be considered an ‘internal disclosure’ (a public interest disclosure made ‘within’ government); you are not required to action the disclosure.

However, if disclosure is not progressed by the ARTF (or allocated to another agency), and unless it is unreasonably practicable to do so, you must inform the discloser of the following [s 44(3)]:

Information to be provided to discloser

Yes/No

a.) The reasons why the disclosure has not been actioned; and

b.) Any other course of action that might be available to the discloser under other laws of the Commonwealth (for example a work place grievance process).

MANDATORY NOTIFICATION ACTION REQUIRED

How to ‘allocate the handling of a disclosure’ to the ARTF

Authorised officers are required under s 44(1) to notify principal officer of an agency of the following information relating to allocations to their agency:

Notification required under s 44(1)

Yes/No

a.) the allocation to the agency;

b.) the information that was disclosed;

c.) the suspected disclosable conduct (if any);

d.) if the discloser’s name and contact details are known to the authorised officer and the discloser consents to the principal officer (or delegate) being informed, the discloser’s name and contact details.

This notification must be in writing, preferably by email. You must ensure that any communication remains confidential.

Notification of allocation to Ombudsman:

The Ombudsman’s office is currently developing a spreadsheet for this notification purpose and will provide direction on the notification period (it is proposed that a quarterly notification model be adopted).

Notification to discloser

You must inform the discloser of the allocation, unless it is not reasonably practicable to contact the discloser [s 44(2) & (4)]. A Defence letterhead can be used as ARTF guidance has been designed with this notification (a copy of this letter head – titled ‘Notification to discloser – Allocation’, can be downloaded from the PID website at http://intranet.defence.gov.au/ig/sites/_home/ComWeb.asp?page=44297).

All authorised officers must comply with this notification requirement.

CONSIDERATIONS WHEN MAKING AN ALLOCATION DECISION

While the following section identifies key considerations for a authorised officers, you should familiarise yourself with the Defence Public Interest Disclosure Scheme – Administrative Guide which contains more comprehensive guidance to authorised officers.

A public interest disclosure may be made without the public official asserting that the disclosure is made for the purposes of the PID Act [s 28(3)].

A person need not expressly identify their report of wrongdoing as a public interest disclosure, as they are not required to do so under the PID Act. They may not even know that their information or allegations could constitute a public interest disclosure.

This does not mean that every complaint about workplace conduct should be treated by managers, supervisors and authorised officers as a public interest disclosure, particularly as one of the grounds for not investigating a matter under the PID Act is that it is not ‘serious disclosable conduct’. Complaints can cover a wide range of matters, including workplace disputes, harassment or bullying complaints, health and safety concerns, and allegations of improper conduct. Some matters (such as those alleging inappropriate behaviour) can be managed by less formal approaches, such as resolving the matter managerially, and/or reviewing policies or procedures. In other cases a matter may initially appear to be a personal grievance but on investigation may reveal more complex issues (for example, investigation of a complaint about an incident of harassment may reveal a serious workplace culture issue – i.e. a matter that should be dealt with under the PID Act).

In all cases, you must record sufficient information about decisions you make with respect to the management of public interest disclosures (see below section of recording allocation information)

A public interest disclosure can be made orally or in writing [s 28(1)].

If the information is disclosed to you verbally, it is good practice to prepare a written record of the conversation, and have the person making the disclosure confirm and/or sign the record.

If the disclosure is made to you in writing, where it is necessary, you may wish to seek clarification on any of the information disclosed to you.

The PID Act does not specify what information should be provided by the discloser when making a public interest disclosure. However, the onus is not on the discloser to prove the disclosure; they only need to put the agency on notice that they honestly believe on reasonable grounds that there has been wrongdoing.

Where practicable, during your engagement with the discloser, you should ask to be provided with as much information as possible covering to help in your determination on how to proceed. The information the discloser should provide could include:

their name and contact details;

the nature of the wrongdoing;

who they think committed the wrongdoing;

when and where the wrongdoing occurred;

relevant events surrounding the issue;

if they did anything in response to the wrongdoing;

others who know about the wrongdoing and have allowed it to continue;

whether they believe their information is a public interest disclosure under the PID Act ( they do not have to describe it that way for it to be treated as a public interest disclosure); and

if they are concerned about possible reprisal as a result of making a disclosure.

If necessary, you should advise disclosers to be clear and factual, and to avoid speculation, personal attacks and emotive language as they divert attention from the real issues.

You should ask the discloser for any supporting correspondence or other documents, such as file notes or a diary of events, and the names of any people who witnessed the conduct or who may be able to verify what the discloser is saying.

You should also reassure the discloser that even if the information they provide turns out to be incorrect or unable to be substantiated, their disclosure is protected by the PID Act, provided that they:

made the disclosure to an appropriate person under the PID Act; and

honestly believe on reasonable grounds that the information tends to show disclosable conduct.

A public interest disclosure may be made anonymously [2 28(2)]. There is no obligation under the PID Act for the discloser to provide their identity to an authorised officer.

You should emphasise to the discloser that they should not discuss the details of their disclosure with anyone who does not need to know. Discussions with those people will not be covered by the protections in the PID Act. (Similarly, you should emphasise to a supervisor, manager or commander reporting a disclosure of information to you that it may be unlawful for them to discuss the details of their disclosure with anyone who does not need to know).

The discloser should be advised to be discreet about the fact that they have made a public interest disclosure, the information in their disclosure and any information that would identify someone they allege has acted wrongly.

One of the requirements for making a public interest disclosure is that the person is or was a public official [s 26(1)]. This does not mean that the person has to prove their status to you. They may give you information that supports that status, for example, by stating that they used to work for the ARTF or otherwise explaining how they know about the wrongdoing they are reporting. If they do not, you may wish to ask questions along these lines (if the person has provided contact details). However, it is suggested that you should be generous in your interpretation of the requirement that the discloser is a current or former public official, and treat an anonymous discloser as such unless there is evidence to suggest otherwise. The focus should be on the purpose of the PID Act to encourage reports of wrongdoing and ensure they are properly dealt with.

Notwithstanding the previous paragraph, you may, if practicable, wish to advise an anonymous discloser of the following reasons why they should consider providing you with their identity:

The PID Act requires agencies to keep a discloser’s identity confidential, subject to limited exceptions including the discloser’s consent (ss 20, 21). The person’s identity may nonetheless become apparent if an investigation is commenced. If the person’s identity needs to be disclosed or is likely to become apparent, you should discuss this with them;

It will be difficult to ensure protection from reprisal if the ARTF does not know the discloser’s identity;

In receiving and assessing the disclosure of information you must have reasonable grounds to suspect the disclosable conduct has occurred in order to allocate the matter for investigation. If the ARTF cannot contact the person to seek necessary further information, the matter may not proceed;

It may also be difficult to conduct an investigation if the discloser cannot be contacted for further information. An investigator has the discretion not to investigate, or investigate further, if the discloser does not provide their name and contact details or is unable to give the investigator further information or assistance if needed [s 48(1)(i)]; and

A discloser who does not provide a means of contact cannot be updated on the progress of the matter, including the outcome of the investigation.

The motive or intention of a discloser does not determine whether investigation is warranted. There can often be a history of conflict in a workplace, particularly if the person has tried to report wrongdoing in the past and they feel their concerns have been dismissed or ignored. This does not mean that their report should be discounted. When receiving a disclosure, you must be careful to look at the substance of the report rather than focusing on what they believe to be the person’s motive for reporting.

Public Officials making public interest disclosures are protected under the PID Act from reprisals or disclosure of their identifying information. They also receive a range of statutory protections under the Act. This includes:

It is a criminal offence under the PID Act to take, or threaten to take, reprisal action against a person making or intending to make a public interest disclosure (s 19).

The ARTF should take steps to protect the discloser against reprisals. This underlines the importance of conducting a risk assessment of reprisal as soon as possible after the disclosure is received (see below section on risk assessment).

It is a criminal offence under the PID Act to unlawfully disclose or use any information which may identify the public official making the public interest disclosure (s 20). Exceptions to this offence provision include:

The disclosure or use of the identifying information is for the purposes of the PID Act;

The disclosure or use of the identifying information is for the purposes a law of the Commonwealth, or a prescribed law of a State or Territory (this would include authorised action undertaken with respect to the Public Service Act, Defence Force Discipline Act, Defence (Inquiry) Regulations, or other policies and procedures authorised through legislation or regulation);

The public official making the disclosure consents to the disclosure or use of the identifying information; or

The identifying information has previously been lawfully published.

As an example, the discloser’s identity, or information that would effectively identify them, may need to be disclosed to certain other people if that is necessary:

to investigate the disclosure effectively (for example, if the wrongdoing that was reported was directed solely against the discloser), or

to protect them against reprisals (for example, if there are concerns that it is impossible for them to remain in their current workplace).

In such circumstances, you should emphasise to a discloser that the PID Act cannot provide absolute protection of their identity in all situations. You should advise the discloser, that even with the utmost care to protect their identity; you may not be able to prevent their identity from becoming known. Other staff may guess who made the disclosure once an investigation is under way, particularly if the discloser has previously complained about the issue to colleagues or flagged their intention to disclose.

If it is necessary or highly likely that the discloser’s identity will be revealed, you should discuss this with them before proceeding.

It is a criminal offence for a person (s 65) to disclose to another person, or to use, information that has been obtained in the course of conducting a disclosure investigation, or in connection with the performance of a function, or an exercise of a power, by the person under the Act.

It is a criminal offence for a person (s 67), to disclose to another person, or to use, information, obtained in their capacity as a recipient of a public interest disclosure covered by item 4 of the table in subsection 26(1) – i.e. a legal practitioner)

ADDITIONAL OBLIGATIONS ON AUTHORISED OFFICERS

If, an individual discloses, or proposes to disclose, information to you; and
the you have reasonable grounds to believe that:

the information concerns, or could concern, disclosable conduct; and

the individual may be unaware of what this Act requires in order for the disclosure to be an internal disclosure;

you must (s 60):

Action required….

Yes/No

a.) inform the individual that the disclosure could be treated as an internal disclosure for the purposes of this Act; and

b.) explain what this Act requires in order for the disclosure to be an internal disclosure; and

c.) advise the individual of any orders or directions of which the authorised officer is aware that are designated publication restrictions that may affect disclosure of the information.

This information must be recorded.

RECORDING OF ALLOCATING THE HANDLING OF A DISCLOSURE

Mandatory procedures for facilitating and dealing with public interest disclosures (s 59) include maintaining appropriate written records of allocating the handling of a disclosure [PID Standards (s 6)],

DI(G) PERS 45-8: Defence Public Interest Disclosure Scheme mandates that all information relating to receiving, assessing, allocating, investigating and the reporting of public interest disclosures is to be recorded into DPSMS. The ARTF is to use the DI(G) as a guide.

In accordance with the s 6 of the PID Standards (which have the effect of law and are legally binding), the following minimum information is to be recorded.

Information relating to the allocation of the handling of a disclosure

Yes/No

a.) The decision (including the name of each agency to which the disclosure is to be allocated); and

b.) The reasons for the decision; and

c.) The consent provided by the agency to which the allocation is made

Information relating to informing the discloser of the allocation

Yes/No

a.) The day and time the discloser was notified; and

b.) The means by which the discloser was notified; and

c.) he content of the notification

MANDATORY OBLIGATIONS TO UNDERTAKE RISK ASSESSMENT

In accordance with the PID Act [s 59(1)(a)], the ARTF must have in place procedures to include assessing risks that reprisals may be taken against a person who makes a public interest disclosure. This involves assessing the specific behaviour and circumstances that may result in reprisals, and then putting in place appropriate strategies to prevent or contain them. Inappropriate workplace behaviour, including harassment, intimidation, undermining of authority, ostracism, humiliation, questioning of motives and heavier scrutiny of work, can greatly increase stress and can result in serious injury to someone who has made a disclosure. The risk assessment can include not only the risk of direct reprisal against the discloser, but also the risk of related workplace conflict or difficulties.

An accurate and objective risk assessment allows the ARTF to put suitable strategies in place to control the risks and defend itself against any allegations of having failed to protect a discloser.

When should a risk assessment be done?

The risk assessment should be completed as soon as possible after a disclosure is received, or after the ARTF is notified that a disclosure concerning ARTF. has been received.

On receiving a disclosure, where you consider, there is the risk of, or there is the potential risk of, or a threat of a reprisal action against a discloser, you should undertake a risk assessment, using the following four steps:

Identifying – are reprisals or related workplace conflict problems in the workplace, or do they have potential to be problems?

Assessing – what is the likelihood and consequence of reprisals or related workplace conflict?

Controlling – what strategies should be put in place to prevent or contain reprisals or related workplace conflict?

Monitoring and reviewing – have the strategies been implemented and were they effective.

Who should be consulted?

The best sources of information about potential risks are people who are involved in the particular workplace, especially the discloser and their supervisor or manager (provided that person is not involved in the alleged wrongdoing).

Asking the discloser why they are reporting wrongdoing and who they might fear a reprisal from can be helpful in:

assessing likely perceptions amongst staff as to why the discloser came forward and how colleagues may respond if the discloser’s identity becomes known

managing the discloser’s expectations about how other staff might perceive their disclosure

reducing the potential for future conflict between the discloser and management about whether effective support was provided

identifying the motives of staff allegedly involved in reprisals if a later investigation becomes necessary.

45. The supervisor or manager may also be a valuable source of information about these matters.

Identifying Risks

The person doing the risk assessment should clearly define the individual factors affecting the particular discloser and the specific workplace when determining if there are factors that make it likely that reprisals or related workplace conflict will occur (see para. 51).

Assessing risks

The person assessing the risk should consider:

the likelihood of reprisals or related workplace conflict occurring – this may be high if:

there have already been threats

there is already conflict in the workplace

a combination of circumstances and risk factors indicate reprisals or related workplace conflict are likely

the potential consequences if they do occur – both to the discloser’s immediate and long term wellbeing and the cost to the agency.

Controlling risks

The agency should plan and implement strategies to control the risks likely to expose a discloser to reprisals or related workplace conflict. Any decision should be made in consultation with the discloser.

If the risk is assessed as sufficiently high, the agency should prepare a plan to prevent and contain reprisals against the discloser or related workplace conflict. If it has been determined that a discloser will require support, the agency should develop a strategy for providing an appropriate level of support, such as appointing a support person.

If the discloser’s identity is likely to be known or become known in their workplace, the agency should adopt a proactive approach, for example, by raising the matter with staff, reiterating the agency’s commitment to encouraging and where appropriate investigating public interest disclosures, and reminding staff that taking or threatening a reprisal is a criminal offence.

Monitoring and reviewing risks

Problems in the workplace can arise at any point after a disclosure has been made, including during an investigation. The risk assessment should be monitored and reviewed as necessary, including by checking with the discloser to see if reprisals have been made or threatened.

Threats or past experience

Has a specific threat against the discloser been received? Is there a history of conflict between the discloser and the subjects of the disclosure, management, supervisors or colleagues? Is there a history of reprisals or other conflict in the workplace? Is it likely that the disclosure will exacerbate this?

Confidentiality unlikely to be maintained

Who knows that the disclosure has been made or was going to be made? Has the discloser already raised the substance of the disclosure or revealed their identity in the workplace? Who in the workplace knows the discloser’s identity? Is the discloser’s immediate work unit small? Are there circumstances, such as the discloser’s stress level, that will make it difficult for them to not discuss the matter with people in their workplace? Will the discloser become identified or suspected when the existence or substance of the disclosure is made known or investigated? Can the disclosure be investigated while maintaining confidentiality?

Significant reported wrongdoing

Are there allegations about individuals in the disclosure? Who are their close professional and social associates within the workplace? Is there more than one wrongdoer involved in the matter? Is the reported wrongdoing serious? Is or was the reported wrongdoing occurring frequently? Is the disclosure particularly sensitive or embarrassing for any subjects of the disclosure, senior management, the agency or government? Do these people have the intent to take reprisals – for example, because they have a lot to lose? Do these people have the opportunity to take reprisals – for example, because they have power over the discloser?

Vulnerable discloser

Is or was the reported wrongdoing directed at the discloser? Are there multiple subjects of the disclosure? Is the disclosure about a more senior officer? Is the discloser employed part-time or on a casual basis? Is the discloser isolated – for example, geographically or because of shift work? Are the allegations unlikely to be substantiated – for example, because there is a lack of evidence? Is the disclosure being investigated outside your organisation?